Delhi Divorce Lawyer

SOCIAL CAUSES

2009-02-01T12:40:00.000-08:00

In our fast changing world, inequalities and human suffering are not slowing down. Instead every leap forward and every innovation is highlighting the gap between the people on this earth. The fundamental questions remain the same despite the enormous progress we have made as human beings. How can we fight inequality? How do we ensure a stronger life for the weaker? How do we create a hopeful life for the desperate? The Human race has overcome so many challenges over the years that nothing seems impossible! However, I personally believe that we have not even achieved one tenth of what is possible when it comes to creating socially acceptable living condition for all. Alleviating current social burden to unfold the full potential of communities should be the guiding spirit of all of us as humans. Our approach is based on three main ideas, (1) Children needs to be the center of any program that aims to have a healthy society (2) Communities should have within themselves the resources to overcome social challenges (3) Research and Policy analysis have to be a complete part of any social program.

In India, one child in every 5,000 is said to suffer from anorectal malformation, a birth defect where the anus and rectum are not properly developed, making the expelling of waste very painful and difficult. At the same time, one infant in 100,000 is reported to be born with common cloaca, a rare and complicated form of anorectal malformation, where children are born without proper vagina, urethra and anus. Some experts describe this malformation as a "medical mess" but paediatric surgeons like Dr. Y.K. Sarin, Head of Paediatric Surgery, Maulana Azad Medical College, are confident of giving these children a new life, removing them from the clutches of agony and giving them hope to live a normal life. Surgeons take about six to 10 hours to reconstruct the vital organs of a child to enable them to pass urine and stool in a normal manner, otherwise done through a single channel that stresses the child.

I feel fortunate to be associated to a non - profit and non - governmental organization called “Caremycolostomy” whose basic task is to provide all kind of assistance to the young ones who are born with anorectal malformations right from surgery after birth to the post operative care.

At this stage I would like to add one incident where one can imagine the plight of these children in Indian society.

That on 29.7.2007, one of the national daily in India reported on its front page “SCHOOL THROWS OUT ‘SCARY CHILD’. On going through the detailed report, it came out to the knowledge that one boy named Vishesh aged about 4 years has made a subject of discrimination by the school authorities on the pretext that he is having catheter attached to his appendix to drain urine, and per the school authorities, the same is scaring other children. That it is further revealed that the boy is at present undergoing treatment in Mulana Azad Medical College under the supervision of Dr. Y.K. Sarin, head of Pediatric Surgery for a neurogenic bladder, which is an inability to pass a urine without using a catheter, came back home on Friday with the school managements request to his parents that they withdrew him back despite the fact that before the admission the parents explained his condition to the school authorities. That it is further made clear in the same report on behalf of the school authorities that they would not admit the child unless they receive in writing from the parents that they would not be held responsible in case some miss happening occurs with the child during the school hours as they being incapable to handle such a situation. It is further made clear to them either they should make arrangement of an attendant or they should personally come to pick him up after the school. That on the next day another report came in the newspaper that the parents have agreed to the school that in case of emergency they would rush to the school along with an attendant. That after reading this several questions come up to the mind of every member of this support group including me like; -

Is it fair enough to discriminate a child who is already discriminated by almighty himself from the rest of the children?

Would it be fair to treat such child abnormally in comparison to other children, who are being sent by their parents to schools to make them, civilized enough to understand the realities of life?

Isn’t the right to education or being treated at par or equality with other children meant for the children like Vishesh?

Doesn’t the school authorities bound to provide extra care and facilities to these children without charging anything for the same?

Isn’t fair for the school authorities to keep attendant on their own expanse being skilled enough to take care of such sick children at the school hours?

Isn’t this a moral and legal duty of the school authorities to provide at least basic knowledge to every teacher regarding ailment of these children so that they can be handled with perfect ease during school hours?

Does it fair to ask the parents to provide them the attendant all the time during the school hours more especially when the catheter is just a temporary arrangement in case of Vishesh?

Would it be fair on the part of the school authorities to refuse admissions of such children on the grounds that he or she is suffering from any malformation since birth?

Isn’t a moral or legal duty of all of us to provide a healthy environment to these children so that even they can become a part of our civilized society?

Why do these children remain aloof from the basic amenities of life and liberty which are being provided to every citizen of India by our scared constitution?

Why do the school authorities of the society at large hesitate in taking over the responsibilities of such children?

Does it a crime for the parents of such children to think that their son or daughter is no less then any other ordinary healthy child?

Is it fair enough to infuse thought in the mind of these young wards at such a tender age of their being different from the rest of the children?

Isn’t this discrimination come in the way of these children in their moral, spiritual or physical development?

Why don’t these children be given status of a physically challenged child including free travel with an attendant to the treating hospital?

It is pity that in India, the problems of these children do not end at the school level but even in the hospitals, where these children are being left over by their own parents as it’s easier for them to have second child rather then bearing a burden of the sick child through out their life. Not only this despite the instructions of the treating Doctors to the parents to come regularly in the hospital for the post operative care of the child, only 2 out of 10 comes back, which prima facie evident of the fact that either the child die or being left over to die by his or her own parent. Besides this the numbers of such patients are large enough in the hospitals to cope up by the present set of available pediatric surgeons in India.

It is further nerve wrecking that in India the care of these children are being left over to the hospitals, where even the basic amenities to treat these children are lacking, leave apart the facilities required by them.

We at www.delhidivorcelawyer.com considers that it is now our bound down moral duty to do something for the boy and every other child suffering from such disorder in India, who are being victimized by non other then our own country men merely on the pretext that he or she is having some deformity since birth.

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CRUELTY

2009-01-30T12:03:00.002-08:00

It means such treatment as to cause a reasonable apprehension in the victim’s mind that it will be harmful or injurious for the petitioner to live with the erring spouse.Cruelty may be physical or mental. Cruelty may be subtle, brutal, by words, gestures, silence, indifference, violence, or non-violence. Legal cruelty means injury causing reasonable apprehension to injury to life, limb or health. Willful and unjustified interference by one spouse in the life of the other may be cruelty. It is not restricted to physical violence. It may extend to behaviour, which may cause pain and injury as well as renders the matrimonial home a brutal home. Rough and domineering conduct, excessive or unnatural sexual practice, or disgusting accusations of unchastely, adultery or unkindness or persistent nagging, out burst of temper without any course, etc. contemplates mental cruelty. This may cause more serious injury than physical cruelty.Before the courts, the acts of cruelty are judged objectively. The test is not whether a spouse is cruel but whether the conduct of the wrong-doer is such as affecting the victim cruel from a reasonable point of view that the conduct may cause pain and injury to the mind so as to render the matrimonial home very unhappy. An intention on the part of one spouse to injure the other is not, however, a necessary element of cruelty as a matrimonial offence. Hence, where the spouses are of a normal physical and mental health, proof of persistent refusal or inability to perform sexual act would amount to cruelty in contrast to cases where desertion without reasonable excuse, does not by itself amount to cruelty.
The question of cruelty is determined from the whole facts and circumstances of the case including their culture, temperament, status in life, state of health, daily life and other factors. Wife’s refusal to have sexual intercourse and bear children leads to mental ill health of husband amounts to cruelty and broadly speaking, cruelty means such treatment as to cause reasonable apprehension in the petitioner’s mind that it will be injurious for the petitioner to live with the other souse.

Section 13 (1) (ia) of the Act 68 of 1976, reads:“13(1) Any marriage solemnized, either before or after the commencement of the Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorcee on the ground that the other party.(i) x x x x(ia) has, after the solemnization of marriage treated the petitioner with cruelty.”The Act 68 of 1976 does not contain what would constitute cruelty. However, the act empowers the trial court to interpret, analyze and define cruelty in a case, depending upon variety of factors. The broad and liberal test for interpreting Section 13 (1) (ia), as amended up to date, is to find out whether cruelty is of such type, that the petitioner cannot reasonably be expected to live in company of the respondent.Physical cruelty 0may consist of physical violence. It may be actual or threatened violence whereas the germ of mental cruelty lies on the conduct of the respondent, which would cause injury to the petitioner to live with the respondent or is of such nature, so as to create a reasonable apprehension to that effect. It is, therefore, essential and vital to prove that mental cruelty can even cause more grievous injury and create in the mind of injured spouse, reasonable apprehension that it will be impossible or unsafe to live with the erring party. The conduct alleged must also be viewed from the angle of the victim’s capacity or incapacity for in durance insofar as, that is to be known to the offending spouse and cruelty is in generality, in its character, a cumulative charge.Whether the respondent has treated the petitioner with cruelty, can only be answered after all the facts and matrimonial relation of the parties and interaction in the daily life as may be disclosed by evidence, has been taken into account.The case canvassed before the trial court should contain such ingredients for physical or mental cruelty and revival of matrimonial cruelty from time to time. Before allowing the petition it is necessary that the cruelty in the facts and circumstances of the case should satisfy the conscience of the court to believe that the marital relations between the parties had deteriorated to such extent by reason of the conduct of the respondent that it became impossible for the petitioner and respondent to live together without wild bickering and open day to day confrontation.

The ground of cruelty has been specified in the statute, which means that dissolution of marriage can be maintained on a solitary act of cruelty without adding a new ground by imperative process.The court considers the entire evidence and the material brought on record and after hearing the counsels for the parties gives its findings. The incidents of cruelty as a matter of fact and conduct of parties relating to it plays a positive role in helping the court to form its conclusion that acts of commission or omission on the part of the other spouse and its other family members are bound to result in the great physical or mental torture of the petitioner and no victim can be expected to endure such a conduct for a long time and such findings defines that such a conduct of other spouse falls within the term ‘cruelty’. If ill-treatment or beating is found as a fact on appreciation of evidence, it empowers the court to hold the other spouse guilty of such cruelty as would entitle the petitioner to live separate and demand maintenance.When one of the spouses is ill-treated by the parental relatives of the other spouse, it would be a question of fact on the appreciation of the evidence whether there was ill-treatment or cruelty. The cruelty by father and brothers of the other spouse is not cruelty within the meaning of Section 13 (1) (ia) of the Hindu Marriage Act, 1955. In such case, the conduct of the in-laws with no complicity or interest of the petitioner being involved in it may not be considered as treatment with cruelty. In such cases on the appreciation of the material on the record, it may be designated that after taking into account the entire matrimonial relationship, surrounding circumstances, character and personality of petitioner with all its limitations can’t be characterized as one of cruelty towards respondent. The word ‘treated’ denotes a conscious action and includes an omission, which has to be cruel in order to call for a decree of divorce. Taunting and insult with the sole object to humiliate and degrade by in-laws in presence of the erring spouse, amounts to an implicitly party to cruelty. Implicitly party to the cruelty is of such a grave and weighty nature so as to constitute cruelty, as omission to rescue the petitioner is blame-worthy, within the meaning of Section 13 (i) (ia).Primarily the burden is on the party who claims divorce on the basis of cruelty. However the burden shifts to the opposite party if it pleads reasonable cause of justification for withdrawing from the company of the other spouse. Hindu Marriage Act, 1955, Section 13 and Delhi High Court Rule 7 (iv) speak about the requirements of Rule regarding giving specific acts of cruelty in petitions seeking dissolution of marriage. The purpose of the rule is to make the respondent known what case he has to meet. The allegations of the matrimonial offence of cruelty are contained in the divorce petition which lead to framing of issues as to whether the respondent has treated the petitioner with cruelty as alleged. If it is found that the allegations are vague and not in conformity with Rule 7 (iv) in the absence of disclosure of date, month, time and also the place of commission / omission of the matrimonial offence of cruelty, then the incidents of cruelty may be supposed as unsubstantiated and the petition is dismissed. It is the duty of the trial court to look in to the merits of the incidents of cruelty and determine it rule 7 (iv) of the Hindu Marriage Act Rules, 1979 provides that in the case of alleged cruelty, the date and circumstances in which it began, the specific acts of cruelty and the occasions when and the place where such acts were committed should be stated in the petition in addition to the particulars required to be given under Order VII Rule 1 of the code of Civil Procedure. The object of those provisions and the functions of the particulars is to present full picture with sufficient details of the cause of action so as to make the opposite party understand the case. It helps to define and limit the issues to be tried.When immediately after the marriage, the respondent told the petitioner that it has no mind to marry and there would never be any marital relations and made the petitioner sleep separately from it and did not allow the marriage to consummate. When the petitioner requested the respondent to have marital relations for which the respondent threatened the petitioner with death. This conduct, if proved, would lead to an inference that marriage tie instead of being a source of inspiration, became a source of frustration and misery for the petitioner. It is for this reason the petitioner may allege that the respondent treated it with cruelty.The requirement of the rule is only to give specific acts of cruelty and the occasion when and place where such acts were committed. Where there is specification of place of commission is the matrimonial home, and the allegations are not vague and with reasonable definiteness the primary facts of alleged cruelty have been given, the requirement of the Rule is satisfied as the object of the Rule calling upon the petitioner to give specific acts of cruelty by giving occasions and the place where the said acts were committed is only with a view to enable the respondent to know what case he had to meet and thus prevent a surprise at the trial. The petition should contain averments indicating with reasonable definiteness the primary facts of alleged cruelty; it is not open to the trial court to brush aside such allegations as vague and if the court commits wrong, the order becomes appealable under section 28 of the Hindu Marriage Act, 1955.Where the allegations are that the misbehavior of the respondent had reached to such a stage when it had become impossible for the petitioner to live with the respondent due to tension created in the former’s mind. The requirement of the rule framed under the acts as also form prescribed, make it mandatory for the petitioner to state the acts of cruelty in separate paragraphs with dates and time. The requirement under the rule framed is not fulfilled when not even a single date and time is stated in the petition or in the evidence. The court may take view that the general allegations are not sufficient to substantiate cruelty.The initiative to prove the allegations must be taken by the petitioner. It is the duty of the petitioner to produce the best evidence, the law also enjoins a duty on the court under section 23 to satisfy itself about the existence of any ground before granting any relief. The intention of the legislature is that the public interest requires that the marriage bond be not set aside lightly or without strict enquiry. It is, thus, on the satisfaction of the court that a relief can be granted.The petitioner alleges that the marriage between, the parties has not been consummated. The respondent states that during the time the parties lived together, almost on all dates there was sex. Here the medical evidence of an independent board of doctors may determine the falsity or truth of the case of the parties. The medical evidence of doctor is subject to cross-examination by other party. The falsity or truth of the case of either of the parties would best be established by the medical evidence of Doctor, after he be cross-examination. Enabling the parties to subject the Doctor to cross-examination is permissible under Evidence Act.Before this amendment, i.e., marriage Amendment Act of 1976, in Hindu Marriage Act, 1955, Section 13 (1) (ia) speaks about cruelty as a ground for divorce. The board test to be applied in interpreting Section 13 (1) (ia) has to be the test whether the cruelty is of such type that the petitioner can not reasonably be expected to live with the respondent or living together of the spouses had become incompatible. An attempt to define cruelty was made. Factual background of each case has relevance. It was incumbent upon the petitioner to prove cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live together with the other spouse.The Marriage Laws Amendment Act (68 of 1976) was passed to introduce drastic changes and obliged the court to decide pending cases as if they have been originally instituted under the Act as amended. The Act, inter alia, provided also for divorce on cruelty as mentioned in amended provision, viz, Section 13 (1) (ia).In the legislative background, the Act originally provided cruelty as a ground only for judicial separation under section 10 of the Act and not for divorce under Section 13.It was by the Hindu Marriage (Amendment) Act, 1964 (Act no. 44 of 1964) that the change was introduced in the form of section 13 (IA) by which it became possible to obtain decree for divorce two years after passing of decree for judicial separation provided that parties did not resume cohabitation during that period. The positive effect of the Amending Act is that any of the spouses can claim either judicial separation or divorce on the ground of cruelty as contemplated under the aforesaid clause. It may be mentioned that there is an analogous provision, viz, Section 27 (1) (d) in the Special Marriage Acts, 1954, for obtaining divorce on ground of cruelty. This provision was also interpreted by various courts. The appealing feature of the amending Act is that it intends to liberalize the law of divorce.The recommendations of Law Commission in its 59th report and statement of objects and reasons of the Amending Act in order to examine the legislative intention can be looked into by the courts to examine the purpose of finding out what the state of affairs was before the amendment but it can not be referred to for understanding the meaning of any particular words in the statute itself. The statement of objects and reasons has always been held to be an unsafe guide while interpreting the substantive provisions of any enactment. It the Shastrik Hindu Law divorce was unknown. Then came the Act, which introduces Judicial Separation and that too on a certain condition. After the passing of the Act and the Special Marriage Act, various suggestions discharge towards amendment to liberalize of law relating to divorce were made by general public. New trend of thinking had developed in society.Hindu Marriage Act, 1955, (as amended up to date) Section 13 (1) (ia) tells us about cruelty as a ground for divorce. The broad test to be applied in interpreting Section 13 (1) (ia) has to be whether the cruelty is of such type that the petitioner can not reasonably be expected to live together with the other spouse or living together of the spouses had become incompatible. Amendments of the Hindu Marriage Act, 1955, were, made from time to time with intention to liberalize the law of divorce in accordance with the modern trend.The Act originally provided cruelty as a ground only for judicial separation under section 10 and not for divorce under section 13. It was by the Hindu Marriage (Amendment) Act, 1964 (Act no.44 of 1964) that the change was introduced in the form of Section 13 (IA) by which it became possible to obtain a decree for divorce two years after passing of the decree for judicial separation provided the parties did not resume cohabitation during that period. Old Section 10 (1) (b) read as under:“10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party;(a) …………………………………………………………….(b) Has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.”By Act no. 68 of 1976, as mentioned earlier, drastic changes were brought about in the Act. A provision for divorce by mutual consent was introduced. Waiting period for obtaining divorce was reduced from one year to six months. A right of repudiation of marriage to girls subjected to child marriage was conferred and the Amending Act was applied also to pending proceedings with a view to avoid multiplicity of suits and consequent appeals. New Section 13 is substituted for the former Section and sub – section (1) (I-a) providing for dissolution of marriage also on the ground of cruelty in introduced. Section 10 is amended so as to transfer the grounds for judicial separation or divorce on the new grounds enumerated therein. Section 13 (1) (i-a) reads thus:“13.(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party;(i) XXXXXXXXXXXX(i-a) has, after the solemnizations of the marriage, treated the petitioner with cruelty;(i-b) …………………………………………………………………The net effect of the Amending Act is that any of the spouses can claim either judicial separation or divorce on the ground of cruelty as contemplated under the aforesaid clause. It may be mentioned that there is an analogous provision, viz, section 27 (1) (d) in the Special Marriage Act, 1954, for obtaining divorce on the ground of cruelty. This provision was also interpreted by various High Courts before Dastane,s decision in Supreme Court by applying the old English concept of doctrine of danger as was applied while interpreting old Section 10 (1) (b) of the Act.Before the learned single Judge it was contended on behalf of the respondent that cruelty contemplated under the Act as amended meant cruelty, as it is understood under the old English concept, as the object of the amending Act was to nullify the effect of the decision of the Supreme Court in Dastane’s case (supra) and to restore the ratio laid down by various courts prior to the decision and to bring the new provision at par with Section 27 (1) (d), Special Marriage Act. Reliance was placed in support of this proposition on Madanlal’s case the learned Judge hearing this appeal did not agree with the view taken in the said decision as a result, the matter was referred to the Division Bench, being unaware of the fact that decision rendered in Madanlal’s case was confirmed by other Division Bench in letters patent Appeal no. 28 of 1980 decided on 10th March, 1980. The Division Bench to which the matter was referred also did not agree with the view taken in Madanlal’s case as according to it, the intention of the Amending Act was to liberalize the law of divorce in accordance with the modern law and not to restore the doctrine of danger which now is discarded even in England and hence reference to the Full Bench.In Madanlal’s (supra) case the learned Judge refused to look in to the recommendations of the Law Commission as contained in its 59th Report and the statement of Objects and Reasons of the Amending Act in order to examine the legislative intention, on the ground that this was impermissible except for purposes of finding out what the state of affairs was before the amendment. It was also held that even though the Amending Act generally intended to make and has actually made some provisions relating to divorce liberal it may not be liberal “on a particular aspect”.The statement of objects and reasons accompanying the bill which ultimately amended the Hindu Marriage Act in 1976. It read as follows:“The objects of the legislation are mainly, (1) to liberalize the provisions relating to divorce, (2) to enable expeditious disposal of proceedings under the Act, and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Act”. (See the Gazette of India, Extraordinary, Part II, Jan – April, 1976, page 780).The statement of objects and reasons can not be referred to except for the purpose of finding out what the state of affairs was before the amendment. It can not be referred to for understanding the meaning of any particular words in the statue itself. The statement of objects and reasons has always been held to be an unsafe guide while interpreting the substantive provisions of any enactment. Secondly, even though the Act intended to make and has actually made liberal some provisions relating to divorce on a particular aspect a provision may not be made liberal. If the provision of cruelty as a ground of divorce were to be liberal then in view of the decision of the Supreme Court in Dastane V. Dastane, it was not even necessary to amend the act. The fact that the Parliament thought it fit to amend the ground relating to cruelty and brings it on par with the language used in the Special Marriage Act shows that on this aspect the intention of the Legislature, as it revealed through the words, was not to liberalize the ground relating to cruelty. Furthermore, “where a word has been construed judicially in a certain legal area, it is, right to give it the same meaning if it occurs in a statute dealing with the same general subject matter, unless the context makes it clear that the word must have a different construction”. (See Maxwell on The Interpretation of Statutes, 12th Edition, page 278). I have, therefore, no hesitation in holding that the expression to be found in Section 13 (1) (i-a), Hindu Marriage Act, endorses necessarily the concept of cruelty as it is understood under the English Law”.The view that either the recommendations of the Law Commission or the statement of objects and reasons can not be looked in to for judging the legislative intention even in case of doubt, is not correct. The law on this point is no more res integra. No more the old approach is held valid either in India or in Western countries. In the case of Sagnata Investment Ltd V. Norwich Corporation Lord Denning freely referred and to the report of the Royal Commission on Betting, Lotteries and Gaming and to the minister’s speech in the House of Commons on the bill for construing the Betting, Gaming and Lotteries Act of 1963 and 1964. The decision of the House of Lords in Fothergill V. Monarch Airlines Ltd. is an indication of the shift in favour of more liberal use of legislative materials. The position is in no way different in India. In the case of Union of India V. Steel Stock Holders Syndicate Poona, free use of the statement of objection and reason was made while interpreting some of the provisions of the Indian Railways Act, pertaining to the provision relating to breach of contract. In K.P. Varghese V. Income – Tax Officer, Ernakulam, not only the statement of object and reasons of the bill was referred but even the speech made by the mover of the bill was referred.The examination of 59th report and the statement of objects and reasons of the relevant bill refers to the social background against the back drop of which the bill was introduced. In the Shastik Hindu law divorce was known. Then came the Act which permitted judicial separation and divorce on some different grounds. On the ground of cruelty only judicial separation was permissible before 1964, after which divorce was permitted after waiting for a period of two years of the passing of decree for judicial separation and that too on certain conditions. Examination of the grounds either for divorce or for judicial separation would reveal that the “fault theory” predominated. After the passing of the Act as well as the Special Marriage Act, various suggestions for their amendment all directed towards liberalization of law relating to divorce were put forth by members of parliament as well as the general public. New trend of thinking had developed in society. The thinking was that there is no use maintaining the marriage as a façade in the absence of emotional and other bonds which are the very essence of the marriage. It was considered better in the interest of healthy society to dissolve the marriage than meaninglessly to try it to linger on the fault theory was thus considered as outdated and the “irretrievable breakdown theory” became favourite. The Law Commission was requested to examine the matter and the Commission presented the 59th Report of the Union Law Minister on 6th March 1974. The committee on Status of Women in India generally supported the amendments proposed by the Law Commission.The statement of Objects and Reasons in terms refers to all these matters and the 59th Report of the Law Commission. The topic of cruelty as a ground for divorce is contained in para 2.12 to 2.17 of the Report. It reads thus:“2.12. A draft on the following lines was suggested during our discus that the respondent has since the solemnization of the marriage treated the petitioner with such cruelty that the petitioner can not reasonably be expected to live with the respondent.”2.13. It may incidentally he mentioned here that in many countries, matrimonial relief is provided ot the aggrieved spouse on the ground of cruelty. This redress is usually justified on the ground of the principle of production.2.14 to 2.16. Having considered all aspects of the matter, we have come to the conclusion that it is sufficient to provide for cruelty as a ground of divorce, and it should be left to the courts to determine on the facts of each case whether the conduct amounts to cruelty.2.17. Accordingly, we recommend that in Section 13 (1) Hindu Marriage Act, a new clause should be added as follows:“has treated the petitioner with cruelty”.It would be seen that the above phraseology suggested by the Law Commission is broadly lifted and put in Section 13 (1) (ia). It is sufficient to notice that the suggestion to add even certain limited words contained in para 2.12 was rejected because the Commission considered “that the court would even in the absence of such words broadly adopt the same approach”.11. In Dastane’s case the standard of cruelty was watered down from doctrine of danger to the reasonable apprehension that it is harmful or injurious for one spouse to live with the other as envisaged in old section 10 (1) (b). Even this legislative standard of cruelty on which Supreme Court laid great stress is made to disappear by Act 68 of 1976. Cruelty as a matrimonial offence has now no specified caveat tagged to it. It is now cruelty simpliciter. It is a well know canon of interpretation that every amendment is intended to bring about a change in the existing law and is not an exercise in futility. This position is indeed not debated before us. The contention is that intention was to bring back the concept of cruelty at par with the age old English concept of doctrine of danger and to nullify the effect of Dastane’s case. It is difficult ot accept. In the first place there is not even a whisper in the statement of Objects and Reasons directly or indirectly about Dastane’s case or the view that prevailed before that decision. Secondly the bill in terms refers to the recommendation contained in 59th Report which itself is submitted on 6th March 1974 i.e. more than one year before the decision in Dastane’s case. When entire general trend of the Amending Act is towards a forward step of liberalization of divorce it is fallacious to hold that only with relation to cruelty as to ground for divorce intention was to make the law more stringent and to move backward. Indeed, in view of law laid down in Dastane’s case earlier decision interpreting Section 27 (1) (d) Special Marriage Act, are no longer good law and deserve to be reviewed.There is yet another aspect to the question. The whole of the English Law relating to cruelty is judge made. The first leading decision on the point is Russell V. Russell. Rayden on Divorce 9th Edition page 123, para 79 states the law as under:“Legal cruelty, may be defined as conduct of such a character as to have caused danger to life limb or health bodily or mental or as to give rise to a reasonable apprehension of such danger. Where conduct over a period of years is relied on as constituting cruelty, it is very difficult to prove to the satisfaction of the court that there was reasonable apprehension of danger to health where actual injury is not proved. The fact that a marriage has broken down is no reason in itself for a finding for cruelty”.This definition of cruelty was consistently applied in India while interpreting either provision of the Act or the Special Marriage Act before Dastane’s case. Legislative history or law in England will indicate that even there, the aforesaid concept has become outdated. Sweeping changes made in England in the law relating to divorce is a pointer. Matrimonial Causes Act, 1965, was amended by the Divorce Reforms Act, 1969, permitted divorce on the sole ground of irretrievable breakdown of marriage. Section 2 (1) of the said Act says:“the court hearing the petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say:(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;(b) that the respondent has behaved in such a way that the petitioner can not reasonably be expected to live with the respondent;(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately proceeding the presentation of the petition;(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately proceeding the presentation of the petition and the respondent consents to a decree being granted;(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately proceeding the presentation of the petition.”The Matrimonial Causes Act 1973, which repealed the 1969 Act contains analogous provisions. The behaviour of a type that the petitioner can not reasonably be expected to live with the respondent is a valid ground for divorce even in England. This change in the approach can not be ignored and it can not be reasonably held that Indian Parliament in 1976 was oblivious of those developments. It is pertinent to notice that changes suggested by the Law Commission and accepted by the Parliament are on almost similar lines. In this back ground also it is not possible to attribute intention to restore the higher standard of cruelty contemplated under the old concept, viz, danger to life, limb or health or reasonable apprehension thereof.13. What is cruelty simpliciter? It is not possible to comprehend the human conduct and behaviour for all times to come and to judge it in isolation. A prior definition of cruelty is thus not possible and that explains the general legislative policy with the exception of the Dissolution of the Muslim Marriage Act to avoid such definition and leave it to the courts to interpret analyze and define what would constitute cruelty in a given case depending upon many factors such as social status, background, customs, traditions, caste and community upbringing public opinion prevailing in the locality etc. It is in this background that the suggestion contained in para 2.12 of the 59th Report was turned down and the limiting words, namely “such cruelty that the petitioner can not reasonably be expected to live with the respondent were not incorporated on the view that the court would even in the absence of such words broadly adopt the same approach”. After referring to the fact that the divorce on the ground of cruelty is usually justified on the ground of principle of protection the final draft as mentioned in para 2.17 was suggested and which as referred to above was accepted by the parliament in toto. The broad test, therefore, that will have to be applied in interpreting Section 13 (1) (i-a ) has to be whether the cruelty is of such type that the petitioner can not reasonably be expected to live with the respondent or living together of the spouses had become incompatible.A single judge of this court in the case of Kalpana Shripati Rao v. Shripati v. Rao has also taken a view of the matter similar to the Londhe. The bare reading of the judgment will indicate that the view taken in Madanlal’s case has not been approved in this judgment. However with out referring the matter to the larger Bench it has been held that by Act 68 of 1976 not only there is no reversion to the old English concept but there is a forward march towards liberalization of the divorce on the ground of cruelty and even the statutory limitations have now been done away with. In Ashwini Kumar Sehgal V. Smt. Swatantar Sehgal taking a view that Act, 68 of 1976 has simplified the concept of cruelty, the Punjab and Haryana High Court has aptly observed:“cruelty in such cases has to be of the type which should satisfy the conscience of the court to believe that the relation between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress”.In Balbir Kaur V. Dhir Dass it has been held that cruelty admits in its ambit and scope such acts that might even cause mental agony. Almost on the same lines is the view taken in Dr. Shrikant Rangacharya Adya V. Smt Anuradha. In Sulekha Bairagi V. KamaAla Kanta Bairagi Calcutta High Court has taken a view that the cruelty need not be of such a character as to cause danger to life, limb or health or to give a rise to and that it has to be of the type contemplated under Section 10 (1) (b). However accordingly to this High Court, Act 61 of 1976 has made no change in the law s declared in Dastane’s case by the Supreme Court. For the reasons which need not be repeated we are not in agreement, with the later part of the view. In Raj Kumar Manocha V. Anskuka Manocha, Punjab and Haryana High Court has followed in terms the view taken in Madanlal Sharma’s case, without giving any additional reasoning. In P.V. P. also decision in L.P.A NO. 28 of 1980 has been followed in substance.The cruelty contemplated under Section 13 (1) (i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodied the old Section 10 (1) (b). The cruelty contemplated is a conduct of such type that the petitioner can not reasonably be expected to live with the respondent.

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2009-01-28T01:17:00.000-08:00

After getting enormous response from Indians residing abroad and even within the indian states on www.rprabhakar.com regarding matrimonial laws, solution to the pending cases, plight of NRI’s falsely implicated in different provisions of Civil & Criminal laws of India, Destitute Wives, Helpless Mothers, Neglected Children, Inter Caste Marriages, Maintenance to Wives, Minor’s and Elderly Parents, Alimony, Mutual Divorce, Dowry, Bail, 498-A/406 IPC, Protection Of Women From Domestic Violence Act, 2005, Stridhan, Void and Voidable Marriages, Prohibited relationships, Restitution of Conjugal Rights, Cruelty, Court Marriages, Marriages Registration, Applicability of Foreign Judgments in India, illegitimate child, adultery, bigamy etc., we have come to the conclusion that the ambit of matrimony and its related laws in India are so vast that it is not possible for us to sum the entire topic in one portal that too in one category. Therefore this time we have tried to sum up every aspect of matrimonial laws related to different forms of religion practiced in India with the sole aim to resolve every query related to matrimonial laws.

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